SCOTUS Reneges on Age Bias Suit Against State

WASHINGTON (CN) - Denied immunity from the age bias claims of a fired Illinois prosecutor, the state cannot seek relief from the U.S. Supreme Court after all, the justices said Tuesday.

Illinois hired Harvey Levin as an Illinois assistant attorney general in September 2000 when he was 55 years old. After a 2002 promotion, however, the office fired him along with 12 other attorneys.

Though Levin's annual reviews indicated consistently acceptable performance, both sides acknowledged that supervisors had made Levin aware of his low productivity, excessive socializing and poor judgment.

Levin filed suit, pointing out that two of the other fired attorneys were over age 40 and replaced by younger hires.

U.S. District Judge David Coar declined to let Levin sue Illinois Attorney General Lisa Madigan and others individually, finding that the age-discrimination protections under Section 1983 of the Civil Rights Act were not clearly established at the time of Levin's termination.

But Coar also found that the Age Discrimination in Employment Act does not foreclose the Section 1983 claims against Madigan and others in their official capacities.

After the case was reassigned, U.S. District Judge Edmund Chang dismissed the ADEA claims after finding that Levin does not statutorily qualify as an "employee."

Chang also reversed immunity for the individual defendants, finding that a reasonable official should have known that age discrimination violates an established constitutional right, whether the claim is brought under Section 1983 or the ADEA.

Fearing the federal appeals court would reverse the decision that left him with a viable Equal Protection claim, Levin argued that the 7th Circuit lacked jurisdiction to decide whether the ADEA precludes a Section 1983 age discrimination claim.

The three-judge panel nevertheless ruled in Levin's favor in August 2012, creating a circuit split.

Madigan petitioned the U.S. Supreme Court for certiorari, and the justices took up the case in March.

On Monday, however, the justices dismissed that writ of certiorari as "improvidently granted."

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